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The Possibility of Anti-Discriminatory Immigration Reform in an Era of Resurgent Federalism Keelan Diana

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The Possibility of Anti-Discriminatory Immigration Reform in an Era of Resurgent Federalism Keelan Diana University of Maryland Law Journal of Race, Religion, Gender and Class Volume 12 | Issue 1 Article 7 Chamber of Commerce of U.S. v. Whiting: The Possibility of Anti-Discriminatory Immigration Reform in an Era of Resurgent Federalism Keelan Diana Follow this and additional works at: http://digitalcommons.law.umaryland.edu/rrgc Part of the Immigration Law Commons Recommended Citation Keelan Diana, Chamber of Commerce of U.S. v. Whiting: The Possibility of Anti-Discriminatory Immigration Reform in an Era of Resurgent Federalism, 12 U. Md. L.J. Race Relig. Gender & Class 196 (2012). Available at: http://digitalcommons.law.umaryland.edu/rrgc/vol12/iss1/7 This Notes & Comments is brought to you for free and open access by DigitalCommons@UM Carey Law. It has been accepted for inclusion in University of Maryland Law Journal of Race, Religion, Gender and Class by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. CHAMBER OF COMMERCE OF U.S. V. WHITING: THE POSSIBILITY OF ANTI-DISCRIMINATORY IMMIGRATION REFORM IN AN ERA OF RESURGENT FEDERALISM KEELAN DIANA* I. INTRODUCTION In April 2010, the Arizona legislature enacted Senate Bill 1070, otherwise known as the Support Our Law Enforcement and Safe Neighborhoods Act,2 to a chorus of national protest.3 S.B. 1070 created new regulations that, in essence, outlawed the presence of undocumented immigrants within Arizona's borders by criminalizing the failure to carry immigration documents.4 The bill's most controversial provision lent law enforcement officers broad discretion to monitor the immigration status of Arizona residents when officers possess a "'reasonable suspicion' that someone may be 'unlawfully present.' Despite the fact that critics of S.B. 1070 viewed it as gratuitous, it has inspired many other states, including Alabama, Copyright 0 2012 by Keelan Diana *Juris Doctor Candidate 2013, University of Maryland School of Law. 1. S.B. 1070, 49th Leg., 2nd Reg. Sess. (Ariz. 2010), available at www.azleg.gov/legtext/49leg/2r/bills/sbl070s.pdf 2. Austin T. Fragomen, Jr., State Immigration-Related Statutes and Federal Preemption: The Coming Supreme Court Decision, 87 INTERPRETER RELEASES 2033, 2033 (2010). 3. See e.g., Randal C. Archibold, Arizona Enacts Stringent Law on Immigration, N.Y. TIMES (Apr. 23, 2010). http://www.nytimes.com/2010/04/24/us/politics/24immig.html?scp=1&sq=Arizona%20SB%2 01070&st-cse. 4. See id 5. Fragomen, supra note 2, at 2033. Critics charged that the "reasonable suspicion" requirement could only lead to racial profiling and institutionally-sanctioned discrimination against persons of Hispanic origin. See, e.g., Alessandra Soler Meetze, Q & A- Arizona's SB1070 Racial Profiling Bill, ACLU (May 18, 2010), http://www.aclu.org/immigrants-rights- racial-justice/q-arizonas-sbl 070-racial-profiling-bill. However, "[t]he law specifically states that police, 'may not solely consider race, color or national origin' when implementing SB 1070." Steven A. Camarota, Centerfor Immigration Studies on the New Arizona Immigration Law, SB1070, CTR. FOR IMMIGRATION STUDIES (April 29, 2010), http://www.cis.org/Announcement/AZ-Immigration-SB 1070. 2012] WHITING AND IMMIGRATION REFORM 197 Georgia, Indiana, South Carolina and Utah -some of which have immigrant populations significantly lower than Arizona 7-to pass similar legislation. Since the passage of S.B. 1070, the tenor of the national debate on immigration and its effects has grown more intense and the view espoused by proponents of enhanced subfederal immigration restrictions that states are "policy innovators that represent the future of immigration enforcement" 9 seems to have become more widely accepted. Yet, under the Supremacy Clause of the United States Constitution,11 the trend toward subfederal involvement in immigration regulation may pose a problem.12 Decades of precedent view immigration law and regulation as areas traditionally reserved to the federal government.13 Supremacy Clause jurisprudence thus dictates that the immigration framework embodied in the Immigration and Nationality Act (INA)1 4 preempts certain subfederal legislation under the doctrines of express and implied preemption.15 Federal preemption over certain areas of law, most notably immigration, has a long and storied history.16 Recently, however, state and local governments have expressed an increased interest in regulating 6. State Omnibus Immigration Legislation and Legal Challenges,NAT'L. CONFERENCE OF STATE LEGISLATURES (Dec. 23, 2011), http://www.ncsl.org/issues- research/immig/omnibus-immigration-legislation.aspx. 7. As of 2009, Alabama's foreign born population was 3.1% of its total population. Alabama: Social & Demographic Characteristics, MIGRATION POLICY INST., http://www.migrationinformation.org/datahub/state.cfm?ID=AL. Compare this with Arizona's 14%. Arizona: Social & Demographic Characteristics, MIGRATION POLICY INST., http://www.migrationinformation.org/ datahub/state.cfm?ID=AZ. 8. In the context of this comment, the term "subfederal" refers to laws enacted by state and local governments as opposed to those enacted by the federal government. See generally Kati L. Griffith, Discovering "Immployment" Law: The Constitutionality of Subfederal Immigration Regulation at Work, 29 YALE L. & POL'Y REv. 389, 389 (2011) (discussing subfederal employer sanctions laws and the implications and limitations Federal laws impose on subfederal laws). 9. Keith Cunningham-Parmeter, Forced Federalism: States as Laboratories of Immigration Reform, 62 HASTINGS L.J. 1673, 1676 (2011). 10. See generally Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power Over Immigration, 86 N.C. L. REv. 1557 (2007-2008) (arguing that immigration law has fallen naturally into the purview of state power via its increasing entanglement with criminal law). 11. The Supremacy Clause asserts that the "Constitution, and the Laws of the United States . shall be the supreme Law of the Land . anything in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. CONST. art. VI, cl. 2. 12. Id 13. See infra Part II. 14. Immigration and Nationality Act, 8 U.S.C. §§ 1101-1537 (2006). 15. See infra Part II. 16. See infra Part II. 198 U. MD. L.J. RACE, RELIGION, GENDER & CLASS [VOL.12:1 immigration, based on a pervasive belief that the federal government has failed to control the population of undocumented immigrants and a widespread fear that states are "turning into . .. Third World cesspool[s] of illegal immigrants."l 7 When the United States Supreme Court granted certiorari to the petitioners in Chamber of Commerce of U. S. v. Whiting on the issue of whether or not the Legal Arizona Workers Act (LAWA), a statute that doles out harsh penalties to employers who fail to validate their employees' work authorization status using E-Verify,20 was expressly or impliedly preempted by the "'comprehensive' federal scheme created by' the [Immigration Control and Reform Act of 1986 (IRCA)]," some pundits predicted that "the Court's conservative- leaning majority" would affirm the Ninth Circuit's prior decision in Chicanos Por La Causa, Inc. v. Napolitano22 and uphold LAWA. 23 These predictions turned out to be correct, but Whiting hardly represents a definitive statement on the nature of immigration federalism.24 The Roberts Court decided Whiting on the ground that the penalty LAWA imposes on businesses who violate its provisions falls within the licensing exception allowed for by IRCA in its savings 17. Karla Mari McKanders, Welcome to Hazleton! "Illegal" Immigrants Beware: Local Immigration Ordinances and What the Federal Government Must Do About It, 39 Loy. U. CHI. L.J. 1, 13 (2007) (quoting Joseph Turner, an aide to a California state legislator who, in 2006, drafted anti-immigrant legislation that the California Superior Court eventually struck down). "The federal government's failure to achieve comprehensive immigration reform and enforce existing laws . has motivated local governments to implement their own immigration laws." Id. at 14. 18. 131 S. Ct. 1968, 1968 (2011). 19. ARiz. REv. STAT. ANN. §§ 23-211-14 (2008). 20. A free, internet-based system designed to enable employers to check the work authorization status of their employees. See Fragoman,supra note 2, at 2036. "Employers who violate the prohibition against knowing or intentional employment of an unauthorized foreign national are subject to a range of graduated penalties-from temporary suspension of a state license up to revocation of such license." Id. 21. Fragoman, supra note 2, at 2039. See also IRCA, Pub. L. No. 99-603, 100 Stat. 3359 (Nov. 6, 1986). 22. 558 F.3d 856, 856 (9th Cir. 2009) (upholding LAWA on the ground that, among other things, it was not preempted by IRCA). 23. See Fragoman, supra note 2, at 2039-40. "[T]he case will implicate and potentially place in conflict-two principal preoccupations of the Court's conservative- leaning majority: questions of federalism and states' rights on the one hand and promotion of the interests of corporations and other businesses in a uniform and predictable worksite compliance regime on the other hand." Id. at 2040. 24. Peter J. Spiro, Learning to Live with Immigration Federalism, 29 CONN. L. REV. 1627, 1627 (1997) (explaining that "states are emerging as major players in immigration law. eschewing a century of judicially protected exclusive federal authority .... No longer will the alien's status be fixed only in Washington; no longer will the alien necessarily find
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